wf dIGENOVA & TOENSING, LLP ATTORNEYS-AT-LAW. March 28, 2011 Via First Class Mail, Facsimile (301-341-0772), and E-mail (OSGFOIA@usdoj.gov) James K. Davis Office of the Solicitor General Department of Justice 950 Pennsylvania Avenue, NW Room 6627 ‘Washington, DC 20530-0001 FOIA/PA Mail Referral Unit Department of Justice Room 115 LOC Building Washington, DC 20530-0001 Dear Mr. Davis and FOIA Mail Referral Unit personnel: ‘This firm represents the Judicial Crisis Network (“JCN”). Pursuant to the Freedom of Information Act, 5 U.S.C. 552 ef seq., we file this request on its behalf. ICN is a 501(c)(4) public interest organization committed to the Constitution and the Founders’ vision of a nation of limited government dedicated to the rule of law with a fair and impartial judiciary. It promotes this vision at every level and branch of government by supporting efforts to ensure only highly qualified individuals who share this vision comprise our state and federal courts, and staff executive branch offices that administer and enforce the law. ICN seeks all records in whatever form or format relating to then-Solicitor General Elena Kagan or Solicitor General-designate Elena Kagan concerning any meeting, phone call, etc., dealing with health care policy and law. The request is not limited to the Patient Protection and Affordable Care Act (“PPACA”), P.L. 111-148, as amended, but rather extends to discussions of health care in general. This request covers not only the Office of the Solicitor General, but also includes all components of the U.S. Department of Justice. For your convenience, a copy of this letter is being sent to the FOIA/PA Mail Referral Unit, and we ask that the request be forwarded to every component of the D.O.J. We provide at Appendix A a detailed list of the types and forms of information we seek in this request for JCN. {1776 K STREET, NW - SUITE 737 - WASHINGTON, DC 20008 202-289-7701 - 202-289-7706 (FACSIMILE)We provide the following background: Ina letter dated July 19, 2010, then-Solicitor General Kagan wrote to Senator Sessions, “I attended at least one meeting where the existence of [PPACA- challenging lawsuit State of Florida v. U.S. Department of Health and Human Services] was briefly mentioned . ...” In testimony before the Senate Judiciary Committee on June 30, 2010, Senator Coburn asked then-Solicitor General Kagan, “Was there at any time - and I’m not asking what you expressed or anything else ~- was there at any time you were asked in your present position [Solicitor General] to express an opinion on the merits of the health care bill?” (Emphasis added.) Ms. Kagan responded, “There was not.” In an affidavit filed in Media Research Center v. U.S. Dept. of Justice, Case No. 1:10- ev-0213-ESH (D.D.C. March 15, 2011) Executive Officer of the Office of the Solicitor General Valerie M. Hall declared that the OSG was in possession of, infer alia, “36 pages of personal emails sent to or received by Ms. Kagan in her individual capacity as a nominee to the United States Supreme Court ....” Ina March 21, 2010 email exchange produced in the Media Research Center case, Principal Deputy Solicitor General (now Acting S.G.) Neal Katyal wrote then- Solicitor General Kagan that he thought she should go to a March 22 meeting with the health policy team at the White House to help the OSG prepare for litigation. Ms, Kagan replied, “What’s your phone number?” According to a May 17, 2010 email exchange also produced in the Media Research Center case, then-Solicitor General Kagan was informed that Mr. Katyal had told DOJ Deputy Director of Public Affairs Tracy Schmaler that Ms, Kagan “has never been involved in any of” the health care litigation, and that he had “never discussed the issues with her one bit.” Ms. Kagan immediately wrote Ms. Schmaler: “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.” ‘These matters of record indicate that, at a minimum, Ms, Kagan was or could have been involved at some level in consultation or discussion of health care, if not PPACA in particular. Thus, some records of those discussions, meetings, etc., exist. Similarly, we request that you produce any records (as defined in Appendix A) for the White House that may be in your possession or control. This would include all White House components, including but not limited to the Office of White House Counsel, ete. For your convenience, Appendix B provides a list of those components. We understand the Department of Justice takes the position that the White House records are exempt from production under either the deliberative process privilege or attomey-work product privilege in 5 U.S.C. § 552(b)(5). See Media Research Center v. U.S. Dept. of Justice, Case No. 10-cv-2013, Gov’t’s Mot. for Summary Judgment at 15-21, 30 (D.D.C. March 15, 22011). Nonetheless, we request that you produce such records. We do so because of the Administration’s oft-repeated claim that it intends to be the most transparent in history. See President Obama’s FOIA Memorandum dated January 21,2009. This is a laudable goal that we endorse and encourage. If you choose not to produce those records, we request that you produce a list of the White House components for which records described in this request exist and the name(s) of any person with whom the Solicitor General communicated. Similarly, we ask that you tell the JCN whether any records described above for either the Department of Justice or the White House have been destroyed or transferred fo another government agency or private repository. If so, please identify the ageney or repository. This request is in the public interest because it will contribute significantly to public understanding of the operations of the OSG with respect to health care policy and because JCN, as a 501(c)(4) non-profit, has no commercial interest in the information. As such, we seek a fee waiver for the processing of this request. In the event that the fee waiver request is denied, we agree to pay reasonable duplication fees for the processing of this request. We seek this material in electronic format if it exists. joseph E. diGenova diGenova & Toensing, LLPAppendix A 1. Asused in this letter, the term “documents” means all records and other tangible forms of expression in your possession, custody, or control, whether drafts or unfinished versions, originals, copies, however created, produced or stored (manually, mechanically, electronically, or otherwise), including but not limited to books, papers, files, notes, reports, correspondence, emails, text messages, letters, facsimiles, electronic mail, other electronic communications, word processing documents, spreadsheets, databases, ofiline storage or information stored on removable electronic media, information contained on laptops or other portable devices, ledger sheets, telegrams, telexes, telephone logs, notes or records of conversations or meetings, minutes of meetings, contracts, agreements, calendars, date books, bank statements, worksheets, summaries, invoices, bills, records of billings, checks, wire transfers, drafts for money, records of payment, magnetic tape, tape recordings, disks, diskettes, and other electronic media, microfilm, microfiche, and any other storage device. 2. Asused in this letter, the term “destroyed” means the shredding, discarding, deletion, overwriting, or any other possible destruction or alteration of electronic information or physical documents.Appendix B ‘The Office of Cabinet Affairs This office is the primary liaison between the President and his Cabinet. The office coordinates communications, policy, and logistics between the White House and the Cabinet, as well as managing issues that affect multiple federal agencies. Staff in the Cabinet Affairs office are in daily communication with members of the Cabinet and senior agency staff. The staff includes the Cabinet Secretary, the Deputy Cabinet Secretary, three Deputy Directors, and a Special Assistant. The Office of the Chief of Staff The Office of the Chief of Staff oversees White House staff and works with others to develop and pursue the President’s agenda. This includes being the final "stop" where issues are vetted and positions taken before being presented to the President. The Office of White House Counsel This office advises the President, the Office of the President, and the White House staff. on all legal issues pertaining to the President and the White House. It is often said that the office sits at the intersection of law, policy, and polities. The office advises on investigations, litigation, legislative and administrative proposals, policy initiatives, and judicial nominations, as well as providing legal advice on the myriad of questions that arise in the day-to-day work of the Executive Office of the President. The Domestic Policy Council The Domestic Policy Council supervises the development, coordination, and execution of domestic policy in the White House. The Domestic Policy Council also offers advice to the President and represents his priorities to Congress. Policy teams within the Domestic Policy Council include: * Mobility and Opportunity: This team focuses on improving the lives of disadvantaged Americans, including those currently living in poverty; specific issues include workforce development, poverty alleviation, child nutrition, work/family issues, immigration, criminal justice, and civil rights. © Urban Policy: This team coordinates federal policy with respect to urban and ‘metropolitan areas; leads the Domestic Policy Couneil’s work on housing, transportation, and economic development; and is a clearinghouse for new policy ideas that help reinvigorate the federal-local partnership, including bottom-up and innovative approaches to the nation’s urban and metropolitan challenges. + Social Innovation and Civic Participation: This team helps catalyze action by citizens, non-profits, foundations, and the private sector to lead change in communities across America and make progress on several key priority areas,including health care, education, poverty, and energy conservation. Social Innovation and Civic Participation does this through a social innovation fund and partnerships with federal agencies, public-private partnerships that catalyze action, and new media tools that increase civic participation, and by expanding national service, + Education: This team helps formulate and implement the President's education agenda with the goal of realizing his commitment to providing every child access to a complete and competitive education, from cradle through career. ‘* Office of National AIDS Policy: This team coordinates the continuing efforts of the government to reduce the number of HIV infections across the United States. The Office of National AIDS Policy emphasizes prevention through wide-ranging ‘education initiatives and helps coordinate the care and treatment of citizens with HIV/AIDS. ‘* Office of Faith-Based and Community Partnerships: This office works with 12 affiliated centers in federal agencies to address four priority areas: making community groups an integral part of our economic recovery; supporting women and children, addressing teenage pregnancy, and reducing the need for abortion; supporting fathers and encouraging responsible fatherhood; and fostering interfaith dialogue and cooperation. The White House Communications Department ‘The Communications Department crafts the message that the President delivers to the country. Through speeches, web videos, and even newspaper articles in local paper, the Communications Department keeps the country informed. White House Fellows Office ‘The White House Fellows Office offers leaders who have excelled early in their careers first-hand experience working at the highest levels of the federal government. The Office of the First Lady The Office of the First Lady aids Mrs. Obama in all aspects of her public life. The staff is divided into six departments: Chief of Staff, Policy, Communications, Scheduling, Correspondence, and the Social Office. ‘The White House Office of Legislative Affairs The Office of Legislative Affairs serves as the President's primary liaison to the United States Congress, and is responsible for advancing the President’s legislative agenda on Capitol Hill. Every day, the Legislative Affairs team is on the front lines, working with Senators, Representatives, and their stafis to promote the President’s priorities, Since President Obama came to office, the Legislative Affairs team has helped spearhead the effort to pass several critical bills, including legislation to turn around our economy,expand children’s access to health care, protect consumers from mortgage fraud, ban abusive credit card fees, ensure equal pay in the workplace, and protect children from the dangers of smoking. ‘The Offfice of Management and Administration White House Management and Administration offers important operational and administrative support for the President of the United States and the White House Office and administrative oversight to components of the Executive Office of the President. ‘* White House Photo Office: This office is responsible for photographically documenting and capturing the history of the Presidency. © White House Visitors Office: The Visitors Office is driven, motivated, and inspired by the core principle of carrying out President Obama and Mrs. Obama’s vision of making the White House the "most open and accessible in history" and truly making it the People’s House. This office hosts events that are open to families across the country and heads up all tours inside the Residence. * White House Operations: Also known as "Room One," White House Operations facilitates the needs of staff members and departments from the President on down. From organizing programming, to answering questions generated by staff, to improving on existing processes such as recycling and renovation, we help the White House run! ‘* White House Personnel: The White House Personnel Office strives to foster connectivity, communication, leadership, and development at the White House. This office also works with new hires, other government employees, and intems at the White House to ensure they have a successful experience when they arrive, while they’re here, and as they leave. ‘+ White House Management and Administration Front Office: The Management and Administration Front Office is the hub of the department. This office fosters the growth of the other offices within Management and Administration and throughout the White House by facilitating modernization, assisting with special projects, conducting research, setting and communicating policies, and implementing programs that foster connectivity and community. The Front Office also houses White House Services, which oversees security and access to the complex, as well as the management of the White House telecommunication system. Programming in the Front Office is geared towards building leadership skills in project and program management. National Economic Count The National Economic Council was established in 1993 to advise the President on U.S. and global economic policy. The National Economic Council has four principalfunctions: to coordinate policymaking for domestic and intemational economic issues, to coordinate economic policy advice for the President, to ensure that policy decisions and programs are consistent with the President's economic goals, and to monitor implementation of the President's economic policy agenda. The work of the National Economic Council covers various fields including healthcare, energy, housing, agriculture, commerce, financial markets, fiscal policy, labor, and Social Security. ‘The Office of Presidential Correspondence Supporting the President's effort to maintain a mutually beneficial dialogue with the American people, the Presidential Correspondence Office handles official correspondence on behalf of the President, From private citizens to civic organizations and elected officials, this office receives and responds to the spectrum of sundry letters the President receives. The Office of Presidential Correspondence drafts and produces presidential proclamations, messages, and greetings, and operates the White House Comment Line, which provides the President with rapid-fire feedback from the American people. Within Presidential Correspondence, the Gift Office documents and catalogues gifts sent to the First Family while the Agency Liaison Office works with constituents and federal agencies to facilitate a resolution to their problems. The office provides the President with daily samples of constituent mail to keep him apprised of the concerns and ideas of the American people. The White House Office of Presidential Personnel The Office of Presidential Personnel oversees the selection process for Presidential appointments, Presidential Personnel staff members work to recruit qualified candidates to serve the President in departments and agencies across the government. The White House Office of Public Engagement and Intergovernmental Affairs This office is responsible for building relationships with advocaey groups, non- governmental organizations, and all currently elected state officials. The Office of Public Engagement is also the primary channel through which the general public relates to the White House. Staffers in OPE/IGA consistently work with elected officials and advocates to ensure the President's agenda is supported and continually pushed not only inside the Beltway but in all areas of the country. White House Department of Scheduling and Advance ‘The Office of Appointments and Scheduling, the Office of Advance, and the Travel Office compose the White House Office of Scheduling and Advance, which coordinates the travel itineraries for President Obama and the White House Press Corps, as well as the planning and preparation that go into supporting the President at events around the country and world. Office of the Vice President Each of the departments housed within the Office of the Vice President supports the Vice President’s work as an advisor to the President, a diplomat, and the President of theSenate. The Office of the Vice President maintains solid relationships with the members of the United States Congress to promote the administration’ legislative priorities on Capitol Hill. The Office of the Vice President also develops policy options on a wide range of issues from foreign policy and national security to economic recovery and housing. Additionally, the Office of the Vice President handles all of the Vice President's correspondences, speechwriting, events, scheduling, and travel.